AB383: Bill Text

AB383,296,12 (3) Any party, or any person subpoenaed under this section, may move to quash the subpoena if the movant under sub. (1) has not shown grounds for the subpoena or if compliance would subject the person subpoenaed to an undue burden, require the disclosure of information that is privileged or otherwise protected from disclosure, or otherwise be unreasonable.

AB383,964 Section 964. 971.51 (title) and (1) of the statutes are created to read:

AB383,296,16 971.51 (title) Manner of performing disclosure. (1) Disclosure may be accomplished in any manner mutually agreeable to the parties. Absent agreement, the party having the duty to disclose shall do one of the following:

AB383,296,17 (a) Provide a copy of the material to be disclosed.

AB383,296,21 (b) Notify the other party that the material may be inspected, copied, or photographed during specified reasonable times and make the material available to the other party at the time specified. The party having the duty to disclose shall, unless it provides copies, make available suitable machinery for making copies.

AB383,965 Section 965. 971.52 (3) of the statutes is created to read:

AB383,297,4 971.52 (3) If anything is deleted from discoverable material under a claim of privilege or other exemption, the party to whom the discovery is made shall be notified and may move the court for an order requiring its disclosure. The court may require the deleted information to be furnished to the court under seal for determination of its discoverability. If the court determines that the material is exempt from disclosure, an appropriate sealed copy of the material shall be kept in the court record.

AB383,966 Section 966. 971.56 of the statutes is created to read:

AB383,297,12 971.56 Obtaining nontestimonial information from defendant. (1) In general. Upon motion by the district attorney, the court may order a defendant charged with a crime to participate in a procedure to obtain nontestimonial evidence relevant to whether the defendant committed the crime if the procedure is reasonable and does not involve an unreasonable intrusion into the body or an unreasonable detention of the defendant. An order under this subsection may direct the defendant to do any of the following:

AB383,297,14 (a) Appear, move, or speak for identification in a lineup or, if a lineup is not practicable, through some other reasonable procedure.

AB383,297,15 (b) Try on clothing and other articles.

AB383,297,16 (c) Provide handwriting and voice exemplars.

AB383,297,17 (d) Permit the taking of his or her photograph.

AB383,297,19 (e) Permit the taking of fingerprints, palm prints, footprints, and other body impression.

AB383,297,21 (f) Permit the taking of samples of blood, urine, saliva, semen, skin, breath, hair, or nails or materials under the nails.

AB383,297,23 (g) Submit to body measurements and other reasonable body surface examinations.

AB383,297,25 (h) Submit to reasonable physical and medical inspection, including X-rays, of the body.

AB383,298,2 (i) Participate in other procedures that comply with the requirements of sub. (1) (intro.).

AB383,298,12 (2) Contents of order. An order under this section shall specify with particularity the authorized procedure; the scope of the defendant's participation in the procedure; the time, duration, and place of the procedure and other conditions under which it is to be conducted; and who may conduct the procedure. It may also direct the defendant not to alter substantially any identifying physical characteristics to be examined or destroy any evidence sought. The order shall specify that the defendant may not be subjected to investigative interrogation while participating in or present for the procedure and that the defendant may be held in contempt of court if he or she fails to appear and participate in the procedure as directed.

AB383,298,14 (3) Service. The order shall be served by mailing or delivering a copy to the defendant's counsel and by delivering a copy of the order to the defendant personally.

AB383,298,16 (4) Implementation. (a) Counsel may accompany the defendant at a procedure ordered under this section, but the court may bar other individuals from attending.

AB383,298,20 (b) If the procedure involves an intrusion into the body, it shall be conducted by a qualified health care professional. Upon timely request by the defendant and approval by the court, a qualified health care professional designated by the defendant may observe any procedure involving intrusion of the body.

AB383,298,23 (c) The defendant may not be subjected to investigative interrogation at the procedure. No statement of the defendant made at the procedure is admissible against the defendant if made in the absence of the defendant's counsel.

AB383,967 Section 967. 971.57 of the statutes is created to read:

AB383,299,7 971.57 Nontestimonial discovery from 3rd parties. (1) Upon motion of a defendant, the court may issue a subpoena requiring an individual to participate in a procedure to obtain nontestimonial evidence under s. 971.56 (1) if an affidavit or testimony shows probable cause to believe that the individual to be subpoenaed committed the crime with which the defendant is charged and that the evidence sought is necessary to an adequate defense and cannot practicably be obtained from other sources.

AB383,299,9 (2) A motion and order under sub. (1) shall specify with particularity the following information if appropriate:

AB383,299,10 (a) The authorized procedure.

AB383,299,11 (b) The scope of the 3rd party's participation.

AB383,299,13 (c) The time, duration, and place of the procedure and other conditions under which it is to be conducted.

AB383,299,14 (d) The name or job title of the person who is to conduct the procedure.

AB383,299,19 (3) Any party or any person subpoenaed under this section may move to quash the subpoena if the defendant has not shown grounds for the subpoena or if compliance would subject the person subpoenaed to an undue burden, require the disclosure of information that is privileged or otherwise protected from disclosure, or otherwise be unreasonable.

AB383,968 Section 968. 971.58 (title) of the statutes is created to read:

AB383,299,21 971.58 (title) Compelling certain examinations prohibited.

AB383,969 Section 969. Subchapter V (title) of chapter 971 [precedes 971.65] of the statutes is created to read:

AB383,299,24 chapter 971

AB383,299,25 Subchapter V

AB383,300,1 motions

AB383,970 Section 970. 971.65 (title) of the statutes is created to read:

AB383,300,3 971.65 (title) Pretrial motions.

AB383,971 Section 971. 971.65 (2) of the statutes is created to read:

AB383,300,7 971.65 (2) Time for filing. A motion under this section shall be filed within the time set in the scheduling order. If there is no scheduling order, the motion shall be filed not later than 15 days before trial, unless otherwise permitted by the court.

AB383,972 Section 972. 971.66 of the statutes is created to read:

AB383,300,13 971.66 Motions to dismiss asserting that a statute is unconstitutional. If a defendant moves to dismiss a criminal prosecution by asserting that the statute under which he or she is charged violates the United States or Wisconsin Constitution, the defendant must serve a copy of the motion on the attorney general under s. 806.04 (11) as well as on the district attorney.

AB383,973 Section 973. 971.68 (title), (1) and (3) of the statutes are created to read:

AB383,300,16 971.68 (title) Joinder and severance motions. (1) In general. Either party may move for joinder or relief from misjoinder or prejudicial joinder under s. 970.13.

AB383,300,21 (3) Codefendant's statements. If a defendant moves for severance because a codefendant's out-of-court statement refers to, but is not admissible against, the movant, the court shall determine whether the state intends to offer the statement in evidence as part of its case in chief. If so, the court shall require the district attorney to elect one of the following:

AB383,300,22 (a) A joint trial at which the statement is not received in evidence.

AB383,300,25 (b) A joint trial at which the statement is received in evidence only after all references to the movant have been deleted, if admission of the statement with the deletions made will not prejudice the movant.

AB383,301,1 (c) A separate trial for the movant.

AB383,301,3 (d) With the approval of the court, a separate jury for each defendant sitting in a single trial.

AB383,974 Section 974. 971.69 of the statutes is created to read:

AB383,301,9 971.69 Pretrial dismissal of complaint. (1) A defendant may move for pretrial dismissal of the complaint or of any count in the complaint. The defendant may provide one or more affidavits in support of the motion. The motion shall state with particularity the grounds upon which it is based and shall specify all of the following:

AB383,301,12 (a) The elements of the crime charged or other facts the state is required to prove at trial that the defendant believes the state cannot prove because there is no genuine issue as to any material fact.

AB383,301,15 (b) The evidence or absence of evidence, including any statement of a witness, that the defendant believes is uncontroverted and that establishes the grounds stated in the motion.

AB383,301,18 (c) If applicable, any crime included within the crime charged, as provided in s. 939.66, that the defendant also believes, for the grounds specified, the state cannot prove at trial because there is no genuine issue as to any material fact.

AB383,301,21 (2) If the grounds stated in the motion, if true, would not justify granting the dismissal motion, or if the allegations in the complaint demonstrate that there is a genuine issue of material fact as to those grounds, the court shall deny the motion.

AB383,302,4 (3) If the grounds stated in the motion, if true, would justify granting the dismissal motion and the allegations in the complaint do not demonstrate that there is a genuine issue of material fact as to those grounds, the court shall allow the district attorney to file a written response presenting any facts or expert opinions that the district attorney believes establish the elements or other facts that the state is required to prove at trial. The court may request that the district attorney and defense counsel present arguments and may allow testimony where it would resolve the questions whether a genuine issue of material fact exists.

AB383,302,11 (4) Unless the court denies the motion under sub. (2), the court shall rule on the motion based on the complaint, the material submitted by the defendant in support of the motion, and material, testimony, or argument presented under sub. (3). The court shall rule on the motion as to the crime charged and any included crime specified in the motion. If the court concludes, for the reasons specified in the motion, that there is no genuine issue as to any material fact, the court shall do one of the following:

AB383,302,12 (a) Grant the motion.

AB383,302,13 (b) Allow the district attorney to amend the complaint.

AB383,302,16 (5) A complaint or charge dismissed under this section may not be reissued unless the district attorney has or discovers additional evidence supporting the complaint or charge.

AB383,302,18 (6) The defendant shall raise all grounds that can be raised under this section in a single motion, unless good cause is shown.

AB383,975 Section 975. Subchapter VI (title) of chapter 971 [precedes 971.75] of the statutes is created to read:

AB383,302,21 chapter 971

AB383,302,22 Subchapter VI

AB383,302,23 juveniles in adult court

AB383,976 Section 976. 971.75 (title) of the statutes is created to read:

AB383,303,2 971.75 (title) Probable cause and retention hearings; juvenile under original adult court jurisdiction.

AB383,977 Section 977. 971.75 (2) of the statutes is created to read:

AB383,303,7 971.75 (2) Time for probable cause hearing. The court shall conduct a probable cause hearing that is required under sub. (1) within 10 days after the initial appearance. On stipulation of the parties, or upon motion and for cause, the court may extend that time.

AB383,978 Section 978. 971.75 (4) of the statutes is created to read:

AB383,303,12 971.75 (4) Time for retention hearing. The court shall conduct any hearing on retention of jurisdiction that is required under sub. (3) (b) within 20 days of the probable cause finding under sub. (3) (b). On stipulation of the parties, or upon motion and for cause, the court may extend that time.

AB383,979 Section 979. 971.75 (6) (title) and (a) of the statutes are created to read:

AB383,303,17 971.75 (6) (title) Witnesses at probable cause and retention hearings. (a) Both the district attorney and the juvenile may call and cross-examine witnesses at any hearing under this section. All witnesses shall be sworn and their testimony reported by a court reporter.

AB383,980 Section 980. 971.75 (7) (title) of the statutes is created to read:

AB383,303,19 971.75 (7) (title) Admissibility of reports.

AB383,981 Section 981. 971.75 (9) (title) of the statutes is created to read:

AB383,303,21 971.75 (9) (title) Closure orders.

AB383,982 Section 982. 971.76 of the statutes is created to read:

AB383,304,6 971.76 Pretrial dismissal of complaint against juvenile. (1) Waiver cases. If the court has jurisdiction over a juvenile as a result of a waiver under s. 938.18 (1) (a) or (b), the juvenile may move the court to dismiss the complaint on the ground that the state cannot prove that he or she committed any of the offenses listed in s. 938.18 (1) (a) or (b) on which the waiver was based. The motion shall comply with the requirements of s. 971.69 (1) and the court shall review the motion under the procedures set forth in s. 971.69 (2) to (4). If the court grants a motion to dismiss under this subsection, the court shall order that the juvenile be discharged, but proceedings may be brought regarding the juvenile under ch. 938.

AB383,304,15 (2) Cases involving original adult court jurisdiction. A juvenile subject to the court's original jurisdiction under s. 938.183 (1) may move the court to dismiss the complaint on the ground that the state cannot prove that he or she committed any of the offenses charged under s. 938.183 (1) (a), (am), (b), or (c) under the circumstances described in those provisions. The motion shall comply with the requirements of s. 971.69 (1), and the court shall review the motion under the procedures set forth in s. 971.69 (2) to (4). If the court grants a motion to dismiss under this subsection, the court shall order that the juvenile be discharged, but proceedings may be brought regarding the juvenile under ch. 938.

AB383,983 Section 983. 971.77 (title) of the statutes is created to read:

AB383,304,17 971.77 (title) Motion to transfer jurisdiction in misdemeanors.

AB383,984 Section 984. 972.005 (title) of the statutes is created to read:

AB383,304,19 972.005 (title) Right to jury; waiver.

AB383,985 Section 985. 972.005 (2) of the statutes is created to read:

AB383,304,25 972.005 (2) Partial jury trial waiver. The parties may agree, with the approval of the court, that the jury be instructed that an element of the crime is established. The court shall address the defendant personally to assure that the defendant understands his or her right to trial by jury as to that element and voluntarily waives that right.

AB383,986 Section 986. 972.01 of the statutes is amended to read:

AB383,305,6 972.01 Jury; civil rules applicable. The Except as otherwise provided in this chapter, the summoning of jurors, the, selection, and qualifications of the jury jurors, the challenge of jurors for cause, and the duty of the court in charging the jury and, giving instructions, and discharging the jury when it is unable to agree shall be the same in criminal as in civil actions, except that s. 805.08 (3) shall not apply.